Len Martin Corp.

National Labor Relations Board - Board Decisions

Dec 19, 1986

282 N.L.R.B. 482 (N.L.R.B. 1986)

482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Len Martin Corporation and Pacific Northwest Dis-
trict Council, International Ladies' Garment
Workers' Union, AFL-CIO. Case 36-CA-6758
19 December 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN , BABSON, AND
STEPHENS
Upon a charge filed by Pacific Northwest Dis-
trict Council,, International Ladies' Garment Work-
ers' Union, AFL-CIO (ILGWU) 10 September
1984,1 the General Counsel of the National Labor
Relations Board issued a complaint 27 September
against the Company (the Respondent), alleging
that it has violated Section 8(a)(5) and (1) of the
National Labor Relations Act. Copies of the
charge and the complaint were duly served on the
parties.
The complaint alleges that, since 1981, the
ILGWU has been the designated representative of
an appropriate unit of the Respondent's employees.
The Respondent and the ILGWU entered into a
contract effective from 19 October 1981 to 19 Oc-
tober 1984. About 16 July, Warehouse, Mail Order,
Retail Employees and Wholesale Liquor Salesper-
sons Union, Local 853, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (Local 853) requested the Re-
spondent to recognize it as the exclusive represent-
ative of the unit employees. About 19 July, Local
853 filed a timely representation petition under
Section 9(c) of the Act in Case 32-RC-2024, seek-
ing to represent the employees in the unit. About
19 July, the incumbent ILGWU requested the Re-
spondent to bargain for a successor agreement. The
Respondent and ILGWU met for that purpose
about 28 August. This was the only negotiating
meeting held between the Respondent and the
ILGWU. The complaint alleges that the Respond-
ent has failed and refused to bargain with the
ILGWU since about 6 September. On 5 October
the Respondent filed its answer to the complaint
and on 15 October the Respondent filed its amend-
ed answer, which superseded its answer, admitting
in part and denying in part the allegations of the
complaint.
On 29 October the -General Counsel filed a
Motion for Summary Judgment. On 7 November
the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause why
the motion should not be granted. The Respondent
filed a response.
' All dates are in 1984 unless otherwise mdicated.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Summary Judgment
The Respondent contends that the Board should
deny the Motion for Summary Judgment and dis-
miss the complaint in its entirety because RCA Del
Caribe, Inc.,2 on which the allegations of the com-
plaint are premised, was incorrectly decided.
The General Counsel asserts that the Respondent
seeks only to test the continuing validity of con-
trolling precedent . The Respondent 's affirmative
defense is grounded on but a single contention,
namely, that RCA Del Caribe, which unambiguous-
ly declares unlawful the very conduct in which the
Respondent in its amended answer admits it has en-
gaged, is incorrect and should be reversed. The
General Counsel argues that the Respondent's fac-
tual admissions clearly demonstrate that its refusal
to bargain constitutes a violation of Section 8(a)(5)
and (1) of the Act under RCA Del Caribe., We
agree with the General Counsel.
In urging the Board to reconsider its holding in
RCA Del Caribe, the Respondent asserts that the
stability of collective-bargaining relationships is not
promoted by requiring continued bargaining with
an incumbent union when a valid representation
petition has been filed. Furthermore, it adds, strict
employer neutrality is the simplest and most effec-
tive method for securing employee rights under
Section 7. According to the Respondent, in situa-
tions like this one, where an employer only desires
to remain neutral in a bitter labor dispute between
competing unions, the Board should not compel
continued bargaining with the incumbent. This bar-
gaining, argues the Respondent, in reality tends to
jeopardize an employer's neutrality by allowing it
the option of manipulating the bargaining process
to favor either the incumbent or the outside, chal-
lenging union.
We reject the Respondent's argument and adhere
to the Board's reasoning in RCA Del Caribe. Thus,
we agree with the Board majority in that case that
in the face of competing unions' demands the
"preservation of the status quo through an employ-
er's continued bargaining with an incumbent is the
better way to approximate employer neutrality."
RCA Del Caribe, supra at 965.
We therefore find that the Respondent has raised
no issue that is properly litigable in this unfair
labor practice proceeding. Accordingly, we grant
the Motion for Summary Judgment.
2 262 NLRB 963 (1982).
282 NLRB No. 75
LEN MARTIN CORP. 483
On the basis of the entire 'record, the 'Board
makes the following
FINDINGS OF FACT
I. JURISDICTION
The Company is a California corporation with
an office and place of business in Haywood, Cali-
fornia, which is engaged in providing warehousing
and other presale services to retail clothing distrib-
utors. During the 12 months preceding issuance of
the complaint, the Respondent in the course and
conduct of its business operations , sold goods or
services valued in excess of $50,000 to customers
or business enterprises within the State of Califor-
nia, which customers or business enterprises them-
selves meet one of the Board's, jurisdictional stand-
ards, other than the indirect inflow or outflow
standards. We find that the Company is an employ-
er engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and that both
ILGWU and Local 853 are labor organizations
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Unit and the ILGWU's Representative
Status
The following employees of the Respondent con-
stitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time production
and maintenance employees, including ship-
ping and receiving employees , plant cler-
icals/order checkers and porters, employed by
Respondent .at its Haywood, California facility;
excluding office clerical employees, data proc-
essing employees, mechanics, guards, and su-
pervisors as, defined in the Act.
The ILGWU has been the designated exclusive
collective-bargaining representative of the employ-
ees in the unit since about 16 October 1981.3 Such
$ The petition filed by Local 853 in Case 32-RC-2024 was processed
pursuant to Board authorization . An election was held on 14 December
with the resulting tally: Local 853, 370 votes; ILGWU, 56 votes; and nei-
ther, 11 votes. The ILGWU filed timely objections to the conduct of the
election The Regional Director overruled the objections and certified
Local 853 Subsequently , the ILGWU filed a request for review. The
Board denied the request for review, thereby upholding the certification
of Local 853. Therefore, the ILGWU, since about 18 March 1985, the
date of the Board's denial of the ILGWU's request for review of the Re-
gional Director 's Supplemental Decision and Certification of Representa-
tive, has not been the exclusive collective-bargaining representative of the
unit employees.
Member Johansen did not participate in the authorization to proceed
with the election or the denial of the request for review but considers
them the law of the,case.
recognition is embodied in a collective-bargaining
agreement, which is effective by its terms for the
period 19 October 1981 to 19 October 1984.
B. The Refusal to Bargain
About 19 July, Local 853 filed a timely petition
for representation of the Respondent's unit employ-
ees.
About 19 July the ILGWU, by letter, requested
the Respondent to bargain collectively with it as
the exclusive collective-bargaining representative
of employees in the unit, for the purpose of negoti-
ating a successor collective -bargaining agreement
and, about 28 August, the Respondent and the
ILGWU met for that, purpose. Since about 6 or 7
September, the Respondent has, failed and refused
to bargain with the ILGWU.
We fmd the Respondent has, by this conduct,
violated Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
By failing and refusing to ',bargain with the
ILGWU for a successor collective-bargaining
agreement since about 6 or 7 September, the Com-
pany has engaged in unfair labor practices within
the meaning of Section 8(a)(5) and (1) and Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has violated
Section 8(a)(5) and (1) of the Act, we shall order it
to cease and desist.4
ORDER
The National Labor Relations Board orders that
the Respondent, Len Martin Corporation, Hay-
wood, California, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Withdrawing from bargaining with an incum-
bent union, which is the exclusive bargaining repre-
sentative of its employees in the bargaining unit
based on the filing of a representation petition by
an outside, challenging union.
(b) In any like or related manner interfering
with, restraining, or 'coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
4 As previously noted, the ILGWU is no longer the exclusive bargain-
ing representative of the unit employees . Therefore, our remedy and
Order shall not include an affirmative bargaining order.
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Post at its facility in Hayward, California,
copies of the attached notice marked "Appendix."5
Copies of the notice, on forms provided by the Re-
gional Director for Region 32, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with an incum-
bent, union as the exclusive bargaining representa-
tive of our employees in the bargaining unit based
on the filing of a representation petition by an out-
side challenging union. _
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
LEN MARTIN CORPORATION